India goes 'back to the Dark Ages' by banning gay sex — again

Members of the lesbian, gay, bisexual, transgender community and supporters attend the 5th Delhi Queer Pride parade in New Delhi in 2012.Sajjad Hussain / AFP - Getty Images, file

India's Supreme Court on Wednesday threw out a 2009 ruling by a lower court that had decriminalized gay sex, in a major setback for the cause of gay rights in the world's largest democracy.

The top court stated that only India's parliament could change the law, by deleting a section of the penal code dating back to the 19th century, thus ruling that the Delhi High Court had overstepped its powers with its decision four years ago.

The move shocked gay rights activists, who had expected the court simply to rubber-stamp the earlier ruling. In recent years, India's Supreme Court has made progressive rulings on several rights issues.

"We see this as a betrayal of the very people the court is meant to defend and protect," said Arvind Narayan, one of the lawyers representing the consortium of gay rights groups that was defending the 2009 judgment.

"In our understanding, the Supreme Court has always sided with those who have no rights."

Section 377 of India's penal code bans "sex against the order of nature," which is widely interpreted to mean homosexual sex, and can be punished with up to 10 years in jail. The rule dates back to the days of British colonial rule in India.

"One would never expect the Supreme Court of India to make such a retrograde order, that is so against the trend internationally," said rights lawyer Colin Gonsalves.

"This takes us back to the Dark Ages. This is a day of mourning for us in India."

India's Law Minister Kapil Sibal said he could not comment on the judgment and did not say if the government planned to seek an amendment to the law.

But it seems unlikely the government will risk taking a stand on the issue in the short term. General elections are coming up in May in largely socially conservative India, and the Hindu nationalist opposition is already gathering momentum.

The 2009 ruling to exempt gay sex between consenting adults from the ban was the result of a case brought by the Naz Foundation, an Indian sexual rights organization, which fought a legal battle for almost a decade.

After the Delhi High Court ruling in its favor, a collective of mostly faith-based groups took an appeal to the Supreme Court.

"All the major communities of the country -- the Hindus, the Christians and the Muslims -- had appealed against the ruling of the Delhi High Court," a lawyer for a Muslim charity told reporters.

"They had said that this unnatural sex is not permissible in all the religions of the world."

Thursday's decision could now be appealed through a so-called "curative petition," which would be heard by a panel of five judges.

"The Supreme Court's ruling is a disappointing setback to human dignity, and the basic rights to privacy and non-discrimination. But now the government should do what it should have done in the first place and seek to repeal section 377," Meenakshi Ganguly, the South Asia director of Human Rights Watch, said in a statement.

"Now it should join countries like Australia and New Zealand that have already abolished this colonial law that they too inherited and take the lead in ending such discrimination."